2018-2019 San Mateo County Civil Grand Jury 1

DEMYSTIFYING THE PLEA BARGAINING PROCESS

Issue | Summary | Background | Discussion | Findings | Recommendations

Requests for Responses | Methodology | Bibliography | Appendixes | Responses

ISSUE

How does the San Mateo County District Attorney’s office provide information to victims of

crime and the general public regarding the plea bargaining process, and can this be improved?

SUMMARY

Plea bargaining occurs when a District Attorney and defense counsel negotiate the charges to

which a defendant will plead guilty, and the defendant consents to the deal. Plea bargaining

eliminates the need for a jury trial. The negotiation in San Mateo County occurs in the presence

of a judge who sets the sentence. Plea bargaining has become an integral part of the modern legal

system, given the large number of criminal cases filed relative to the number of available judges.

In San Mateo County, about 95.5 percent of the criminal cases filed are resolved through plea

bargains.

Each county develops its own plea bargaining process. San Mateo County does not publish

information about how this County’s plea bargaining process works. However, this is not

unusual since the Grand Jury was unable to find such publicly available documentation from any

county.1

Members of the public may not be familiar with San Mateo County’s plea bargaining process

and may only learn about it as a result of participating in a criminal case as a crime victim,

witness, or defendant. The Grand Jury believes that transparency in the administration of justice

is essential for maintaining public trust in the integrity of the justice system. This is particularly

important because if victims do not understand the plea bargaining process, their right to be

heard may be lost.

California voters approved a proposition to amend the California Constitution in 2008 to provide

a “bill of rights” for victims of crime, known as Marsy’s Law.2 Marsy’s Law grants victims the

right to be notified of certain developments regarding their case, to confer with the prosecuting

agency, and to be heard at certain proceedings at their request. If victims are not aware of these

rights and do not understand how plea bargaining works, they are unlikely to be able to exercise

these rights.

The mission of the San Mateo County District Attorney’s Office includes “dissemination of

public information about law enforcement.”3 In order to assist victims in vindicating their rights,

1 The Grand Jury confirmed through interviews that San Mateo County does not have information available for the

public to learn about the plea bargaining process. The Grand Jury conducted online searches and research at a local

law library to find information about the plea bargaining process in other jurisdictions. 2 California Constitution, Article 1, Section 28(b) (Marsy’s Law),

https://oag.ca.gov/victimservices/content/bill_of_rights. Discussed further below. 3 San Mateo County District Attorney’s Office, “What Does the District Attorney Do?”, https://da.smcgov.org/

2018-2019 San Mateo County Civil Grand Jury 2

the Grand Jury recommends that the Victim Services Division of the District Attorney’s Office

revise the form letter it initially sends to victims to provide more information about their rights

and how to exercise them. The Grand Jury also recommends that the San Mateo County District

Attorney’s Office develop a summary of the County’s plea bargaining procedure and make it

available to the public in a brochure and on its website. To demystify that step for the public, the

Grand Jury also recommends that the District Attorney’s Office develop and publish on its

website a video showing a simulation of the portion of the plea bargaining process that takes

place in the judge’s chambers.

BACKGROUND

The United States Constitution assures all people who become defendants in the legal system due

process, a speedy and public trial, an impartial jury, the right to face witnesses, and freedom

from self-incrimination.4 When defendants agree to plea bargains, they relinquish these rights.5

San Mateo County’s Plea Bargaining Process

In San Mateo County, there are about 14,000 misdemeanor cases and 2,000 felony cases filed

each year.6 With only 32 judges and commissioners in the County and other limited resources for

trials,7 it would be impossible to adjudicate all of these cases through trial. In order to handle

large numbers of cases, the County developed a plea bargaining system that allows most cases to

be settled without a trial. Under this system, only 0.5 percent of cases go to trial, approximately 4

percent of cases are dismissed, and the remaining 95.5 percent are resolved through plea

bargaining.8

There is no description of the plea bargaining process available from the San Mateo County

District Attorney’s Office. However, the Grand Jury developed its own summary of the process

based on interviews conducted with the District Attorney’s Office personnel (see Appendices A

and B). The process involves: a) a plea offer made by the prosecutor that states the charges, b) a

proposed sentence by the judge based on those charges, and c) a negotiation between the

prosecutor and the defense attorney that may result in a change in charges and sentence. The

preceding part of the process takes place in judges’ chambers (their offices behind the

courtroom) without a court reporter and outside of public view. Once an agreement is reached

between the prosecutor and defense attorney, the defense attorney prepares a plea form with the

terms of the proposed bargain, and discusses the terms with the defendant. If the defendant

accepts the terms, the plea bargain is recorded in open court in front of a “plea taking judge,”

who might not be the same judge that was present during the negotiation, by a “plea taking

4 US Constitution Amendments V and VI (https://www.law.cornell.edu/constitution). 5 Loftus E. Becker, Jr., “Plea Bargaining and the Supreme Court”, 21 Loy. L.A. L. Rev. 757 (1988),

http://digitalcommons.lmu.edu/llr/vol21/iss3/1. 6 Grand Jury interviews. 7 San Mateo County Superior Court of California, “Directory of Judges”,

https://www.sanmateocourt.org/general_info/judges/directory.php. 8 Grand Jury interviews.

2018-2019 San Mateo County Civil Grand Jury 3

DDA” (Deputy District Attorney), who might not be the same Deputy District Attorney who

negotiated the bargain, and the case is closed.

A Brief History of Plea Bargaining

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as city

populations and crimes multiplied, did courts start documenting exchanges that resemble the

modern practice.9 In 1970, when the United States Supreme Court considered the

constitutionality of plea bargaining, it could refer to nearly a century of experience with plea

bargaining and the growing problems of the criminal process.10 In Brady v. United States,11 the

Court concluded that plea bargaining in general was constitutional, and the practice has

continued to be a part of the American legal system.12

While the Supreme Court validated the concept of plea bargaining that was already in practice

across the country, it did not stipulate the procedure to be followed. Each county has developed

different local practices, within frameworks that have been developed through various court

cases and restrictions pursuant to applicable federal and state law. The structure developed in

San Mateo County evolved in the 1980’s and has remained relatively unchanged since that

time.13

DISCUSSION

Criminal justice in colonial America was the business of laypeople, where victims functioned as

prosecutors and defendants often represented themselves.14 In contrast, the modern criminal

justice system is a system of pleas, dominated by knowledgeable professionals who are repeat

players in the system.15 Professional insiders come to know the intricacies of the system, its

technical rules, and largely run the show. To outsiders, the system is opaque, cloaked in jargon,

ridden with technicalities, and sometimes hidden behind closed doors.16

9 Dylan Walsh, “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” The Atlantic, May 2, 2017

https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/. 10 Brady v. United States, 397 U.S. 742 (1970); see also Walsh, “Why U.S. Criminal Courts Are So Dependent on

Plea Bargaining.” 11 397 U.S. 742 (1970) 12 Ibid. 13 Grand Jury interviews. 14 Stephanos Bibas, “Transparency and Participation in Criminal Procedure” New York University Law Review 81,

No. 3 (2006): 912. 15 Ibid. 16 Ibid at 913. See also Laurie L. Levenson, “Peeking Behind the Plea Bargaining Process,” Loyola Law School of

Los Angeles (2012): 3-4. (Plea bargains are the “lifeblood of the American criminal justice system”; “[P]rosecutors

and defense counsel engage in a process . . . resembling horse trading. The focus is frequently on expeditiously

resolving cases while defendants, especially those least educated and sophisticated, often get left in the fog.”) (citing

Robert E. Scott and William J. Stuntz, “Plea Bargaining as Contract” Yale Law Journal (1992): 1909, 1912.) See

also Missouri v. Frye, 566 U.S. 134 (2012): 144 (Justice Kennedy notes that “the reality [is] that criminal justice

today is, for the most part, a system of pleas, not a system of trials…. It is not some adjunct to the criminal justice

system; it is the criminal justice system.”).

2018-2019 San Mateo County Civil Grand Jury 4

The Grand Jury asked representatives of the San Mateo County District Attorney’s office

whether they knew of any resources available to the public to help them understand the County’s

plea bargaining process. They were not aware of any such resources. All agreed that information

about how plea bargaining works should be more widely available, that transparency into the

plea bargaining process is in the public interest, and they could not think of any reason that this

information should not be made public.17

Understanding the plea bargaining process is important because misunderstandings can result in

frustration. For example, while Marsy’s Law18 guarantees victims a right to be heard before a

defendant is sentenced, in misdemeanor plea bargaining cases sentencing often takes place

simultaneously with the defendant’s acceptance of the bargain, and as a result, the victim’s oral

impact statement at the same hearing may have little or no effect on sentencing.19 A victim

cognizant of the plea bargaining process would know that a written statement submitted to the

District Attorney’s Office before development of a plea offer would be more likely to influence

charging and sentencing in the case.

Victims’ Rights in the Context of Plea Bargaining

On November 4, 2008, California voters approved Proposition 9,20 known as “Marsy’s Law,”

which amended the California Constitution to provide a bill of rights for victims of crime.21

Marsy’s Law includes safeguards in the criminal justice system to protect those rights and ensure

that crime victims are treated with respect and dignity as a matter of “high public importance.”22

Marsy’s Law is named after Marsy, a 21-year-old college senior at U.C. Santa Barbara who was

preparing to pursue a career in special education for handicapped children.23 She was murdered

on November 30, 1983, by a former boyfriend who lured her to his home by threatening to kill

himself. Instead, he used a shotgun to end her life.24 Following her murderer’s arrest, Marsy’s

mother was shocked to see him at a supermarket. He had been released on bail with no notice to

Marsy’s family and without any opportunity for them to be heard.25 The law recognizes that

17 Grand Jury interviews. See also Bibas, supra note 13, at 911, 916-917 (Advocating for transparency and

describing costs of “great gulf” dividing insiders and outsiders in the criminal justice system: “Identifying this

tension is the first step toward resolving it.”; “If opacity frustrates and misleads outsiders, transparency and fuller

disclosure can alleviate these problems.”; “Greater transparency and participation would also facilitate the

monitoring of insiders by checking their self-interests and agency costs.”). See generally Mirko Bagaric, Julie

Clarke, and William Rininger, “Plea Bargaining: From Patent Unfairness to Transparent Justice” Missouri Law

Review (2019) (Arguing that dysfunction in the plea bargaining process, in which the prosecutor has stronger

negotiating power, is one of the main reasons the United States is in the midst of a mass incarceration crisis.) 18 California Constitution, Article 1, Section 28(b) (Marsy’s Law),

https://oag.ca.gov/victimservices/content/bill_of_rights. 19 Grand Jury interviews. 20 State of California Department of Justice, “Victims’ Bill of Rights Act of 2008: Marsy’s Law”,

https://oag.ca.gov/victimservices/marsys_law. 21 California Constitution, Article I, Section 28. 22 Ibid, Section 28(a)(2). 23 State of California Department of Justice, “Text of Proposed Laws, Proposition 9, Section 2.2”,

https://vig.cdn.sos.ca.gov/2008/general/text-proposed-laws/text-of-proposed-laws.pdf#prop9. 24 Ibid, Sections 2(2) and 2(7). 25 Ibid, Section 2(7).

2018-2019 San Mateo County Civil Grand Jury 5

Marsy’s family’s situation was not unique and that thousands of other crime victims had similar

experiences caused by “the failure of our criminal justice system to notify them of their rights,

failure to give them notice of important hearings in the prosecutions of their criminal

wrongdoers, [and] failure to provide them with an opportunity to speak and participate….”26

Marsy’s Law grants specific rights to victims27 in the context of the criminal justice process and

plea bargaining.28 These include the right to:29

Reasonable notice of and to reasonably confer with the prosecuting agency, upon

request, regarding, the arrest of the defendant if known by the prosecutor, the charges

filed . . . and, upon request, to be notified of and informed before any pretrial

disposition of the case [emphasis added].30

Reasonable notice of all public proceedings . . . and the right to be present at all such

proceedings.31

Be heard, upon request, at any proceedings . . . involving a post-arrest release decision,

plea, sentencing, post-conviction release decision, or any proceeding in which a right of

the victim is at issue [emphasis added].32

Be informed, upon request, of the conviction, sentence, place and time of

incarceration, or other disposition of the defendant . . . [emphasis added].33

Marsy’s Law also includes a number of provisions intended to ensure that victims are informed

of these rights, requiring that, among other things, law enforcement agencies provide victims

with “Marsy’s Rights”34 cards (see Appendix C), information about a website called “Marsy’s

Page,”35 and a toll-free telephone number to enable a crime victim to contact a local victims

assistance office.36 San Mateo County’s Victim Services Division may be reached by e-mail at

victimservices@smcgov.org or by telephone at (650) 599-7479.37

26 Ibid, Section 2(9). 27 A “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the

commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s

spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is

deceased, a minor, or physically or psychologically incapacitated. California Constitution, Article I, Section 28(e). 28 Ibid, Section 28(b) (sometimes referred to as “Marsy’s Rights”). 29 This is not a complete list of Marsy’s Rights, just those pertinent to the plea bargaining process. 30 Ibid, Section 28(b)(6). 31 Ibid, Section 28(b)(7). 32 Ibid, Section 28(b)(8). 33 Ibid, Section 28(b)(12). 34 Appendix C, Available in English at

https://oag.ca.gov/sites/all/files/agweb/pdfs/victimservices/marsy_pocket_en_res.pdf and in several other languages

at https://oag.ca.gov/victimservices/marsy. 35 See https://oag.ca.gov/victimservices/marsys_law. 36 Local resources can be found through http://victims.ca.gov/victims/localhelp.aspx. 37 San Mateo County Victim Services does not appear to have a toll-free number. See https://da.smcgov.org/victim-

services.

2018-2019 San Mateo County Civil Grand Jury 6

The Role of Victims and Victim Services38

Victims have a role to play and a voice in the criminal justice process, though this is often

dependent on the victim’s level of engagement. An informed and engaged victim is more likely

to be able to have an impact on their case.

The San Mateo County District Attorney’s Victim Services Division (“Victim Services”) tries to

reach out to victims early enough in the process to make sure they know they have a voice, and

know how to exercise that voice. Victims are encouraged to submit written statements early in

the process. These statements may be considered by the prosecutor and the judge in decision-

making about the case, and they also become part of the written record of the case for parole

purposes. They are an opportunity for the victim to tell the judge and the defendant how the

crime impacted them. Victims may also make oral statements. Victim Services will assist victims

who wish to make a statement and will help them understand when they should do so.

For the calendar year 2018, Victim Services served about 9,100 victims of crime (including non-

charged crimes, with no suspect or no arrest).39 The current staffing of Victim Services consists

of 20 staff member positions, including four vacancies. Victim Services spends more staff time

per case working on felony cases because victims of felonies generally have a greater need for

victim support, the cases tend to be more complex, and they take longer to resolve. It is estimated

that victims make statements in less than five percent of cases, for both felonies and

misdemeanors.

Victim Services generally makes three attempts to contact a victim over a period of about three

weeks. The first contact is usually by form letter (Appendix D). This letter itself does not contain

information about Marsy’s Rights, the plea bargaining process, or the criminal justice system.

However, a copy of the Marsy’s Rights card and a brochure about the Victim Services Division

are sent with the letter. The body of the letter provides a phone number for reference and says

“Our program may be able to assist you and/or your family with information regarding Victim’s

Rights, understanding the Criminal Justice System, referring you to community resources, and/or

accompanying you to Court.” A victim can get in touch with a staff member at Victim Services

to get more information. The second attempt to contact a victim is usually by phone, and the

third is either a phone call, text, or email.

Victim Services tries to contact victims at or before the defendant’s arraignment. An arraignment

is usually held two court days after an arrest when the defendant is in custody. If the defendant is

“out of custody” where an officer cites someone at a scene and no arrest is made, that person will

be given a notice to appear at a specific date, in which case the goal would be to contact the

victim before the defendant’s appearance. The standard period for this is four to six weeks.

38 Unless otherwise noted, all of the information contained in this section was obtained through Grand Jury

interviews. 39 This number includes victims to whom a form letter was sent, but who may not have responded to the letter.

Approximately 50 percent of the 9,100 were felonies, 40 percent were misdemeanors, and 10 percent were not

charged.

2018-2019 San Mateo County Civil Grand Jury 7

When Victim Services first talks to a victim, the victim advocate will usually immediately

discuss criminal procedures, how the process works, and how the case might resolve through a

plea deal. It is important to convey this information early since misdemeanors may resolve

relatively quickly, in less than 60 days. Judges sometimes ask the prosecutor if they had a chance

to confer with the victim before resolution of the case. If a victim wishes to be heard, judges will

continue a case to allow a victim to speak if the judge is advised that the victim is interested in

addressing the court.

Victims who have not had any contact with Victim Services may feel left out of the process, for

example regarding charging decisions or pretrial deals. If Victim Services has the opportunity to

walk victims through the process, to educate them about their rights and let them know what to

expect, victims may feel less frustration. Much of Victim Services’ work is about expectations

management. According to Victim Services, it would be beneficial if members of the public had

some understanding of the process, including plea bargaining, beforehand rather than having to

learn all of it quickly during the short, traumatic period when they become a crime victim.

Existing Sources to Learn About Plea Bargaining in San Mateo County As previously described, there are no publicly available sources that explain the plea bargaining

process used in San Mateo County.40 The Grand Jury performed extensive library and online

searches to find documentation about the plea bargaining process from other jurisdictions. While

several articles exist on the goals of plea bargaining, the circumstances under which plea

bargaining should be conducted, and debates about the merits of plea bargaining, the Grand Jury

was unable to find sources that present the specific roles, responsibilities, workflow, and timing

of a plea bargaining process. Currently, the “Orientation to Criminal Justice System” section of

the website of the San Mateo County District Attorney’s Office does not mention the plea

bargaining process.41

The mission statement of the San Mateo County District Attorney’s Office reads, “The mission

of the District Attorney’s Office is the prosecution of adult and juvenile offenders, to provide

services to victims of crime, enforcement of consumer and environmental laws, provision of

legal and investigative support to other law enforcement agencies, and dissemination of public

information about law enforcement [emphasis added].” The Grand Jury therefore

recommends: that Victim Services provide more information in its initial form letter to victims

about victims’ rights to participate in the criminal justice process and how they may exercise

those rights; and that the District Attorney publish information about how plea bargaining works

in San Mateo County to demystify the process for victims and the general public.

40 The Grand Jury reviewed the websites of District Attorneys’ Offices in other Bay Area counties and found the

same deficiency. 41 San Mateo County District Attorney’s Office, “Orientation to Criminal Justice System”,

https://da.smcgov.org/orientation-criminal-justice-system.

2018-2019 San Mateo County Civil Grand Jury 8

FINDINGS F1. While the Supreme Court of the United States has validated the constitutionality of plea

bargaining, it did not set out the procedure to be followed, and different jurisdictions have

developed different processes.

F2. The San Mateo County District Attorney’s Office does not provide printed materials or

information on its website describing the County’s plea bargaining process.

F3. Oral victim statements have less of an impact on charges and sentencing of misdemeanors

when they are delivered after the plea bargain is concluded and the sentence decided, while

written statements delivered to the District Attorney’s Office before the plea bargain is

developed are more likely to have an effect on the outcome of the case.

F4. Victims of crime are afforded the right to participate in a meaningful way in the criminal

justice process, but they are not likely to be able to exercise their rights if they are not

informed of them early enough. The form letter, Marsy’s Rights Card, and brochure that

the San Mateo County District Attorney’s Victim Services Division uses to make initial

contact with a victim do not include any timeline or understandable explanation of key

procedures. A victim might not know they have a right to make a statement, and if they

wanted to make a statement, they would not know when.

F5. The form letter that the San Mateo County District Attorney’s Victim Services Division

uses to make initial contact with a victim does not include a link to its website.

RECOMMENDATIONS

R1. The San Mateo County District Attorney’s Victim Services Division should revise the form

letter it initially sends to victims to include:

a. A basic summary of victims’ rights, including the right to deliver a statement.

b. A basic description and timeline of early hearings in criminal cases in a manner

sufficient to communicate to victims that important rights may be lost if they do

not act, including to deliver written impact statements, early enough in the

process. (Appendices A and B are not intended for this purpose.)

c. A link to the Victim Services website.

This information should be written in a manner that the general public can easily

understand. This recommendation should be implemented by December 31, 2019.

R2. The County District Attorney’s office should develop its own explanation of the County’s

plea bargaining process in a manner that the general public can easily understand

(Appendices A and B are not intended for this purpose), and make it available to the public

in brochure form and on its website. This explanation should include at least the following:

a description of routine court hearings in criminal cases relevant to the plea bargaining

process, a timeline of these hearings, a description of the roles and responsibilities of

2018-2019 San Mateo County Civil Grand Jury 9

participants at each of these hearings, and a description of the critical stages where

participants, including victims, have a role to play that could influence a case’s outcome. A

link to this website should be included in the initial form letter that Victim Services sends

to victims. This recommendation should be implemented by March 31, 2020.

R3. The San Mateo County District Attorney, using input from Victim Services, should

develop and place on the District Attorney’s Office’s website a video showing a simulation

of the portion of the plea bargaining process that takes place in the judge’s chambers. As an

alternative, the District Attorney’s Office could consider using a video such as “Victims of

Violence: A Guide to Help Bring Justice” produced by the California Commission on

Peace Officer Standards and Training (POST), or some similar video, as a resource to share

with victims. This recommendation should be implemented by June 30, 2020.

REQUEST FOR RESPONSES

Pursuant to Penal Code Section 933.05, the Grand Jury requests responses as follows:

From the following elected official:

● San Mateo County District Attorney

METHODOLOGY

Documents ● In investigating documentation of the plea bargaining process used in San Mateo County,

the Grand Jury sought information from published articles on plea bargaining and

reviewed the websites of legal professional organizations and the San Mateo County

District Attorney’s Office. The bibliography contains a full list of these documents.

Interviews ● The Grand Jury interviewed eight persons, including representatives from the San Mateo

County District Attorney’s Office, the Victim Services Division of the San Mateo County

District Attorney’s Office, and the San Mateo County Private Defender Program, who

have experience with the plea bargaining process used in San Mateo County from the

aspects of prosecution, defense, and advocacy for victims.

2018-2019 San Mateo County Civil Grand Jury 10

BIBLIOGRAPHY

● Becker, Loftus E., Jr., “Plea Bargaining and the Supreme Court”, 21 Loy. L.A. L. Rev.

757 (1988), http://digitalcommons.lmu.edu/llr/vol21/iss3/1 (Accessed May 23, 2019).

● Bibas, Stephanos, “Transparency and Participation in Criminal Procedure” New York

University Law Review 81, No. 3 (2006): 912-917.Repository: Faculty Scholarship at

Penn Law. 81, https://scholarship.law.upenn.edu/faculty_scholarship/81 (Accessed May

23, 2019).

● California Victim Compensation Board, “Local Help for Crime Victims”,

http://victims.ca.gov/victims/localhelp.aspx, (Accessed May 23, 2019).

● Justia, “Missouri v. Frye, 566 U.S. 134 (2012)”,

https://supreme.justia.com/cases/federal/us/566/134/ , (Accessed May 23, 2019).

● Levenson, Laurie L., “Peeking Behind the Plea Bargaining Process: Missouri v. Frye &

Lafler v. Cooper, 46 Loy. L.A. L. Rev. 457 (2013).”,

https://digitalcommons.lmu.edu/llr/vol46/iss2/22 , (Accessed May 23, 2019).

● San Mateo County Bar Association, “The Private Defender Program”,

https://www.smcba.org/for-the-public/criminal-defense/, (Accessed May 23, 2019).

● San Mateo County District Attorney’s Office, “Orientation to Criminal Justice System”,

https://da.smcgov.org/orientation-criminal-justice-system, (Accessed May 23, 2019).

● San Mateo County District Attorney’s Office, “Victim Services”,

https://da.smcgov.org/victim-services (Accessed May 23, 2019).

● San Mateo County District Attorney’s Office, “What Does the District Attorney Do?”,

https://da.smcgov.org/ (Accessed May 23, 2019).

● San Mateo County Superior Court of California, “Directory of Judges”,

https://www.sanmateocourt.org/general_info/judges/directory.php (Accessed May 23,

2019).

● State of California Department of Justice, “Victims’ Bill of Rights”,

https://oag.ca.gov/victimservices/content/bill_of_rights, (Accessed May 23, 2019).

● State of California Department of Justice, “Victims' Bill of Rights Act of 2008: Marsy's

Law”, https://oag.ca.gov/victimservices/marsys_law, (Accessed May 23, 2019).

● State of California Department of Justice, “Text of Proposed Laws, Proposition 9,

Section 2.2”, https://vig.cdn.sos.ca.gov/2008/general/text-proposed-laws/text-of-

proposed-laws.pdf#prop9, (Accessed May 23, 2019).

2018-2019 San Mateo County Civil Grand Jury 11

● State of California Department of Justice – Attorney General’ Office, “Marsy’s Rights

Card Text – English”,

https://oag.ca.gov/sites/all/files/agweb/pdfs/victimservices/marsy_pocket_en_res.pdf

(Accessed May 23, 2019).

● State of California Department of Justice – Attorney General’ Office, “Marsy’s Rights

Card Text – Multiple Languages”, https://oag.ca.gov/victimservices/marsy (Accessed

May 23, 2019).

● Walsh, Dylan, “Why U.S. Criminal Courts Are So Dependent on Plea Bargaining,” The

Atlantic, May 2, 2017 https://www.theatlantic.com/politics/archive/2017/05/plea-

bargaining-courts-prosecutors/524112/ (Accessed May 23, 2019).

2018-2019 San Mateo County Civil Grand Jury 12

APPENDIX A

San Mateo County Misdemeanor Plea Bargain Process42

● In the plea bargaining procedure for misdemeanors, a single Deputy District Attorney who

usually has between 18 months to three years of experience in the San Mateo County District

Attorney’s Office, will be assigned as the “Expediter” for six to eight months, occasionally

staying in the position up to 12 months, for all misdemeanor criminal cases in their branch of

the county (Northern or Southern). Someone with less than 18 months of experience will

only be responsible for plea deals if necessary due to a lack of personnel.

● Generally, plea bargaining proceeds as follows:

1. Expediters receive at least one week notice of which cases will be on the court calendar.

During that week they review materials and prepare for plea negotiations. On a daily

basis, each Expediter organizes their information about all the misdemeanor cases that

have been filed and are due for a pretrial meeting with the judge the next day. The

Expediter identifies what charges the District Attorney’s Office will offer, which may

differ from charges previously filed by the District Attorney’s Office at arraignment.

Expediters also make sure that the case has been correctly charged based on the facts and

existing evidence.

2. The following day, the Expediter sits with the judge in a room outside of the courtroom

without a court reporter and each defense attorney is brought in for each case. The

Expediter states the charges they are offering and the judge then states the sentence he or

she would impose for these charges. The defense attorney bargains with the Expediter

and the judge revises the sentence depending on the final agreed charges. The Expediter

can suggest appropriate sentences, but the judge has sole sentencing authority, subject to

law.

3. Once the plea bargain is agreed to, it is the responsibility of the defense attorney to fill

out a plea form setting out the charges and sentencing discussed with the Expediter and

the judge and bring this to the defendant to review and decide whether or not to accept.

4. If the plea bargain is accepted by the defendant, the case will move to a courtroom where

a plea taking judge will have a direct conversation with the defendant, called a colloquy,

to ascertain that the defendant understands the plea agreement, agrees to waive all further

rights to a trial, and accepts the sentence as laid out in the plea form. This plea taking

judge also checks the plea form against the electronic notes from the Expediter and the

judge who was present in the plea bargaining meeting and then reads the terms of the

agreement into the record in open court. This process closes the case. The plea taking

DDA present at this point is often not the Expediter due to the number of cases that are

processed in parallel on the same day. The plea taking Deputy District Attorney is usually

someone from the misdemeanor department who is assigned for this purpose on a given

day. If the defendant does not accept the plea bargain, the case will proceed towards trial.

42 All information in this section was obtained through Grand Jury interviews.

2018-2019 San Mateo County Civil Grand Jury 13

5. The colloquy between the judge and the defendant may take place on the same day as the

plea negotiation, depending on circumstances. Also, the defense attorney may request a

delay, which happens in about 20-30% of cases, for reasons such as determining

immigration consequences of the plea agreement to the defendant. If so, the colloquy for

plea taking will be scheduled on the Disposition and Confirmation (referred to as the

“Dispo Confirm”) Calendar which is held on Friday afternoon of each week.

● Pretrial Conferences during which plea offers are made for the Northern Branch are

scheduled as three hour sessions on Monday afternoon, Tuesday afternoon, Thursday

morning, and Thursday afternoon each week. The sessions for the Southern Branch are

scheduled for Tuesday morning, Wednesday morning, Wednesday afternoon, and Friday

morning. The Southern Branch Pretrial Conference sessions average 30-35 cases and

sometimes more, perhaps 50-60 cases. The Northern Branch Pretrial Conference sessions are

heavier and average 50-65 cases, and sometimes more. From this schedule it can be seen that

at the rate of about 30 cases per three-hour session, each plea bargain is completed in about

six minutes.

● Domestic violence cases are handled in a similar manner but on a different court calendar,

and the Deputy District Attorney who participates in the plea bargaining session is a member

of the Domestic Violence Unit. These cases also differ from other misdemeanor cases in that

a victim’s advocate from the Victim Services Division also attends the plea bargaining

session, and the judge and Deputy District Attorney who participate in the plea bargaining

discussion are the same as those who take the plea inside the courtroom, on the record.

2018-2019 San Mateo County Civil Grand Jury 14

APPENDIX B

San Mateo County Felony Plea Bargain Process43

● The process for “general felonies” is similar to that for misdemeanors except that there may

be up to four “rounds” of plea bargaining. General felonies include such crimes as robbery,

burglary, and grand theft auto. Defendants with “strike” offenses under California’s Three

Strikes Law44 are not eligible for a plea in the first round. The four possible points where a

successful plea bargain can resolve a case without a trial are as follows:

1. After initial arraignment on charges taken from the police report, defendants charged

with less serious felonies go to a Superior Court Review where a plea offer is made by

the Deputy in Charge, who generally has more than ten years of experience (in the

Northern Branch), or an Assistant Deputy in Charge (in the Southern Branch). If accepted

by the defendant, the case will be resolved at this time.

Superior Court Reviews during which plea offers are made for the Northern Branch are

scheduled as three hour sessions on Thursday afternoon each week and sessions for the

Southern Branch are scheduled for Wednesday afternoons. About 20 to 30 cases are

scheduled in each session for the Northern Branch and 10 to 20 are scheduled for the

Southern Branch.

If the case is not resolved in the Superior Court Review, it proceeds to a Preliminary

Hearing where the District Attorney’s Office shows probable cause followed by a second

arraignment on charges based on further investigation that augments the police report that

was the basis for the initial arraignment.

2. The case then proceeds to a Pretrial Conference at which the defendant is provided with a

plea offer from the District Attorney’s Office including those charged with more serious

felonies who did not qualify for a Superior Court Review. A general felony Deputy

District Attorney negotiates the plea bargain. Felony Deputy District Attorneys are more

experienced (generally more than five years of experience) than Deputy District

Attorneys who work on misdemeanors. If accepted by the defendant, the case will be

resolved at this time.

3. If not resolved at the Pretrial Conference, the case goes to a Trial Conference where the

same general felony Deputy District Attorney again makes a plea offer to the defendant.

This offer may differ from the previous offers due to changes in information supporting

the charges. If accepted by the defendant, the case will be resolved at this time.

If the case is not resolved at the Trial Conference, it will be scheduled for trial in the Trial

Department and assigned to a trial judge who is different from the judge who has heard

the case from initial arraignment through the Trial Conference.

43 Unless otherwise noted, all information in this section was obtained through Grand Jury interviews. 44 California Penal Code 1192.7 and 1192.8

2018-2019 San Mateo County Civil Grand Jury 15

4. Once received by the Trial Department, the trial judge will review the plea bargaining

process that has been undertaken and if that judge believes that the two sides are close to

a resolution may hold an additional session with the parties to determine whether the case

can be resolved without going to trial.

● The Presiding Criminal Judge hears all plea offers for all felonies in the first three rounds

described in sections 1, 2 and 3 above so they are familiar with cases where offers have been

made in previous rounds.

● The offer by the District Attorney’s Office made at any stage of the process may be a

reduction of charges to incentivize the defendant to resolve the case without going to trial,

however, in some cases the District Attorney’s Office may offer that the defendant “plea to

the sheet,” meaning that the defendant should plead guilty to all of the charges present at that

time against the defendant.

● There is another category called vertical felonies which include domestic violence, gang

violence, homicide, sexual assault, elder abuse, insurance fraud, and electronic crimes. The

steps for vertical felonies are the same as for general felonies except that all steps are carried

out by the same felony Deputy District Attorney (but not a general felony Deputy District

Attorney) from the respective vertical unit.

● Whereas in misdemeanor cases the defense attorney is responsible for filling out the plea

form and filing it with the court, and the prosecutor does not sign or review the plea form, in

general felonies and specialized (vertical) felonies, the Deputy District Attorney does review

and sign the form.

● As with misdemeanors, the plea taking judge and the plea taking Deputy District Attorney

are often not the same persons who were present when the plea offer was made. The plea

taking Deputy District Attorney is usually someone from the felony department that is

assigned for this purpose on a given day.

2018-2019 San Mateo County Civil Grand Jury 16

APPENDIX C Marsy’s Rights Card

2018-2019 San Mateo County Civil Grand Jury 17

APPENDIX D

San Mateo County District Attorney’s Office – Victim Services First Contact Form Letter

Issued: August 8, 2019